HL Deb 26 January 1993 vol 541 cc1138-46

3.10 p.m.

The Lord Advocate (Lord Rodger of Earlsferry)

My Lords, with the leave of the House, I should like to make a Statement about an allegation of a conspiracy to pervert the course of justice in Scotland.

In September of last year I asked Mr. William Nimmo Smith, QC and Mr. James Friel, Regional Procurator Fiscal of North Strathclyde, to inquire into certain allegations suggesting that there had been a conspiracy to pervert the course of justice in Scotland. The report of their inquiry has today been published as a return to an Address of another place.

The inquiry was set up following the leaking to the press of an internal police report about allegations that decisions in relation to five criminal cases had been taken for improper reasons; namely, to prevent disclosure of information said to identify certain individuals in the legal profession as homosexuals. The allegations relating to the decisions were therefore allegations of possible criminal conduct. Mr. Friel and Mr. Nimmo Smith were asked to report to me. When I received their report, it was my duty to consider whether there was any basis for criminal proceedings.

I have now studied their full and detailed report. It concludes that the decisions in each of the five cases were taken on a proper basis. In particular, it finds that there is no evidence of a conspiracy to pervert the course of justice, or that the course of justice has been perverted or that the alleged motive for such a conspiracy has ever existed. On the basis of the report I have decided that no criminal proceedings fall to be instructed. Further, the report makes it clear that there is no evidence of irregularity in the conduct of business in the Crown Office or procurator fiscal service.

On a wider front, in order to allay public anxiety, it was my intention when I established the inquiry that subject to any restriction necessary for the purposes of possible criminal proceedings, the report would be published in full. Since no question of criminal proceedings arises, the report has been published in full.

The allegations in the police report appear to have been more readily believed because of certain rumours which were circulating among police officers and others about members of the Scottish legal profession. Mr. Nimmo Smith and Mr. Friel have investigated these rumours and have concluded that they are without foundation. To appreciate the force of its conclusions, the report requires to be read as a whole. Those who wish to form a considered view on the matters covered by the report will therefore wish to study and reflect upon the whole text.

The report contains criticisms of certain officers in the Lothian and Borders police force. These are matters for the chief constable and not for me. There are, however, two matters emerging from the report which relate to the police and which I wish to address. The first is the failure of certain officers to understand the role of the independent prosecution authorities in Scotland. The second is that officers may misunderstand the decisions properly taken by those prosecution authorities in particular cases. I intend therefore to pursue with the chief constable what can be done, having regard to the principles which guide the relationship between the police and prosecution authorities in Scotland, to prevent such misunderstandings in future.

My Lords, that concludes the Statement.

3.14 p.m.

Lord Macaulay of Bragar

My Lords, the publication of the report is welcomed by this side of the House. Before I comment perhaps I may make one observation. This report was made on 15th December, 1992. I do not criticise the noble and learned Lord, Lord Rodger of Earlsferry, in any way, but I was handed a copy of the 101-page report only 20 minutes ago. That being so, it seems a negation of the democratic process that I am asked to stand up and comment on the Statement made by the noble and learned Lord. For that reason I cannot respond positively to the content of the report. I have no intention of trying to read it in 20 minutes. I could not do so.

Conclusions are contained in the final two pages of the report but I have always taken the view that it is dangerous to look at conclusions before one sees the basis for them. Your Lordships' House may wish to consider whether a change could be made in the rules of the House so that people who are asked to comment upon matters of such importance have a reasonable chance to consider the content of reports.

As far as I understand the position, the issues involved were initiated by the actions of certain police officers whose views of the prosecution system in Scotland were less than charitable. It is of course right that should police officers or anyone else form the view that justice has been perverted by any influence—homosexual, financial or otherwise—such allegations should be investigated thoroughly.

It would appear that the report arose out of an attempt by some police officers of the Lothian and Borders police to undermine the administration of justice in Scotland for reasons which were, to say the least, dubious. No police officer has been positively identified as the officer who leaked the initial report which sparked off the inquiry, despite the intense police investigation. It therefore follows that some police officer has breached the rules of his service by leaking a confidential police document, yet he remains in service at some level.

Certain changes have been made within the structure of the police force within the Lothian and Borders region and it is not for me to draw conclusions as to why certain officers are not still in the position that they held when the report was leaked to a member of the press. Whoever was responsible for the leaking of the confidential report, which would have been consigned to the bucket by any responsible prosecutor, has not had the courage to come forward and say: "Yes, it was me. I did it in the public interest." Had the officer had a genuine concern for the administration of justice in Scotland then he or she would have come forward and justified what was done.

The lesson to be learned from this unfortunate event—perhaps the one good thing arising from the situation—is that the police must realise that their function is one of investigation and reporting to the authorities. No officer, however well intentioned, should purport to represent the social conscience of Scotland. It is not their function to spread rumours which inevitably undermine public confidence of the administration of justice in Scotland.

Decision-making in the criminal law, as the noble and learned Lord observed, is the function of the Lord Advocate and his officers. That office has a proud and well justified tradition of independence in making such decisions. Should a police officer have a complaint or a doubt in regard to the administration of justice in any inquiry in which he or she is involved, then that should be communicated to a superior officer. It may be that the officer cannot trust his superior, in which case he should go directly to the Crown Office and the Lord Advocate. If he does not trust the Crown Office and the Lord Advocate—I cast no aspersions on the present holder of the office—he should go to his Member of Parliament and raise the matter in the public domain. He should not go to other sources.

It is no part of the duty of a serving police officer to go into the gutter of rumour-mongering, as has happened in Scotland, and undermine the system of justice. The administration of justice in Scotland has for some time operated under a cloud of suspicion and of "Nudge-nudge, wink-wink; who was the homosexual judge? Who was the homosexual sheriff?" and so forth. That has done no one any good. The officers responsible for sparking off the inquiry should take a close look at themselves in the mirror in the morning and ask why they did it in the first place. It is to be hoped that the findings of the inquiry—subject to my reading the whole report having only read the conclusions —will lay to rest the "nudge-nudge, wink-wink" approach to justice in Scotland.

It would be wrong to conclude without paying tribute to the authors of the report—Mr. James Friel, the Senior Procurator Fiscal, and Mr. Nimmo Smith, Queen's Counsel, for the investigation which they carried out and reported upon. I must be honest—I have already spoken about this to my noble and learned friend—and say that I would not have chosen Mr. Nimmo Smith to lead the inquiry or adopted the same form of inquiry. But it must be said and should be widely recognised that Mr. Nimmo Smith in his approach to this inquiry was open to anyone who wanted to know what it was about. He and Mr. Friel conducted the inquiry with great zeal and dedication. Unfortunately, Mr. Nimmo Smith paid a penalty healthwise, having been conned by a person purporting to represent a well-known national newspaper. He had an interview with him in his house, and certain newspapers then sought to destroy not only Mr. Nimmo Smith but the basis of his report. If you can show me the man or woman who has not been conned in one realm of life I will show you either a liar or a very fortunate person.

It is right that the House should say to Mr. Nimmo Smith that it hopes that his health will improve and that he makes a full recovery from the unfortunate incident that he underwent. It was unfortunate that no shorthand notes were taken at that very important inquiry. I will look at the report closely. As I said, I refuse to make any detailed comment but I thank the noble and learned Lord the Lord Advocate for keeping me informed and giving me a briefing yesterday.

In conclusion, I hope that the Scottish legal system can now get on with the administration of justice clear of any suspicion at whatever level of corruption or any other influence.

Lord Harris of Greenwich

My Lords, we should all like to thank the noble and learned Lord the Lord Advocate for his Statement today. I believe that the Statement will reassure all reasonable people. The noble and learned Lord said that the report required to be read as a whole, and all of us look forward to having the opportunity of so doing. Nevertheless, we are reassured that the conspiracy theory, which has received an immense amount of attention in the Scottish media and elsewhere, appears to have absolutely no substance. Is the noble and learned Lord aware that we very much hope that the chief constable will now look at the general questions raised in the report with a view to taking disciplinary action against any officer who is found to have behaved unprofessionally?

Lord Rodger of Earlsferry

My Lords, let me say straight away that I wish to associate myself with the remarks made by the noble Lord, Lord Macaulay of Bragar, about the work done on this report in a comparatively short time by Mr. Friel and Mr. Nimmo Smith. It was difficult work which they carried out with great acumen over the months they were engaged upon it. I am sure that we all wish to join in his congratulations to them on that matter. I am happy to say that according to my understanding Mr. Nimmo Smith's illness was very brief and he is now fully restored to health.

I am sure that your Lordships had some sympathy with what the noble Lord, Lord Macaulay, said about the short amount of time he had in which to study the report. It did not lie in my hands to assist him further. The requirements of the Parliamentary Papers Act 1840 were such that it was not possible to let him have a copy earlier than was actually done.

As to the leaking of the report, that was looked into by the chief constable in an entirely separate inquiry. As I understand it, he was not able to determine who had leaked the report. That and indeed all matters relating to the discipline of the force are for the chief constable. I am sure that he has had these matters in mind.

Perhaps the most important matter that emerges is the relationship between the prosecution and the police in Scotland. We have a very old system of separate public prosecution. It is very important that the police bear in mind the principle that decisions on prosecution are matters for the independent judgment of the prosecution system rather than the police. As I indicated in the Statement, that is a matter I wish to pursue with the chief constable to make sure that these principles are well understood by members of his force.

With regard to what the noble Lord, Lord Harris of Greenwich, said, I join with him in saying that it is reassuring to find that there was no substance in the conspiracy theory as to what had happened in these cases. I believe that when noble Lords have an opportunity to read the report they will see from the detailed way in which it is examined that there is no ground for suspicion on that count. As to the question of disciplining the officers involved, I simply say that that is a matter for the chief constable, which I am sure he has had very much in mind.

3.26 p.m.

Lord Mackay of Ardbrecknish

My Lords, does my noble and learned friend realise that the report by Mr. Nimmo Smith and Mr. Friel will be warmly welcomed not only by the legal profession but by the law-abiding population of Scotland? I wonder whether I can tempt him into agreeing with me that the press ought to review the kind of coverage they have given to this issue over the past many months. At least to my outside view, they appear to have been giving uncritical coverage to innuendo and rumour which have turned out to be totally without foundation. Lastly, I wonder whether he would further agree with me that it is very worrying that the police, who ought to know better, seem to have lost sight of the independence of the procurator fiscal service and the Crown Office in Scotland. Perhaps the police themselves ought to be asked to sit down and watch the well-known television series "Sutherland's Law" of some years ago which clearly indicates the important and independent role of the procurator fiscal service.

Lord Roger of Earlsferry

My Lords, referring to the first point raised by my noble friend Lord Mackay of Ardbrecknish, I think it is true to say that as a result of the report many people may have to learn that there is a difference between fact or justified inference and matters of conclusion which are reached simply on the basis of rumour and speculation. I believe that that is a matter which will have to be reflected upon in all quarters, including the press. As for the independence of the prosecution service, I have already stressed that that is a fundamental part of the system. It is a part which we consider to lie at the heart of the system of criminal law in Scotland, and it is one that it is absolutely essential that the police as well as the prosecution understand.

Lord Wilson of Langside

My Lords, far be it from me to introduce a note of discord into the views that have been expressed with regard to the report. I have been in correspondence with the Lord Advocate about the matter since September. From beginning to end I never had any doubt that the more bizarre suggestions in the press were entirely without substance, but I and many others in the Press and the media felt that the committee that was set up did not have the clout which the circumstances required. There was widespread feeling among the public that something was badly wrong. I expressed the view to the Lord Advocate that the committee should have had more clout. Suggestions from the other place were that it should be a judicial inquiry. He replied to my first letter with indignation—which intrigued me—saying that Mr. Nimmo Smith was a man who possessed all of the qualities required for the inquiry. That was a view which I and many others did not hold at all. However, after further correspondence, the incident to which the noble Lord, Lord Macaulay, has referred took place. Mr. Nimmo Smith was tricked into an interview before the report was published.

I wish that the noble and learned Lord the Lord Advocate could have sent me a copy in view of our lengthy correspondence. Mr. Nimmo Smith allowed himself to be tricked into an interview with someone purporting to be a reporter from, of all papers, the Daily Telegraph. In fact he was one who had been involved in some of the misdeeds that had been complained about. That made me think that my original view that the report would not adequately allay suspicions was correct. I am not suggesting that there were miscarriages of justice. My complaint was that the Lord Advocate's department did not get on to it at an earlier stage.

I shall read the report with interest. I am sorry that Mr. Nimmo Smith has been stricken by illness in consequence of this, but I do not think that people who are entrusted with such inquiries should be conned. I have been conned many a time. As a matter of fact, it was a great con that brought me into this House. However, I agree with the noble Lord, Lord Macaulay, on that point. I do not think that someone who, in the face of hostile criticism, has been appointed to conduct an inquiry like this should have let himself be tricked in that way. It must raise doubts about his judgment, and it was his judgment that was being put to the test.

That is all I want to say. If I had not said it I would have felt—

Noble Lords


Lord Wilson of Langside

Yes, but it is all very relevant to a matter which was causing great concern in Scotland and in the legal profession.

Baroness Carnegy of Lour

My Lords, if the noble and learned Lord will forgive me, am I right in understanding that a Statement is not meant to be the subject of a debate? A number of us who are based in Scotland are extremely interested in this subject but wish to read the report before we have a debate. I wonder whether right from the start many of the questions to the Lord Advocate have gone beyond just questions on the Statement. Perhaps the noble and learned Lord would agree with me that we have to avoid a debate at this point.

Lord Wilson of Langside

My Lords, I sense that I have said enough.

The Minister of State, Home Office (Earl Ferrers)

My Lords, perhaps I may help the House over this matter because I think that my noble friend Lady Carnegy has a point. The Companion to the Standing Orders states: Ministerial statements are made for the information of the House, and although brief comments and questions for clarification from all quarters of the House are allowed, such statements should not be made the occasion for an immediate debate". I think that we might possibly be falling into the latter category.

Lord Wilson of Langside

My Lords, I apologise to the House and to the Lord Advocate.

Lord Rodger of Earlsferry

My Lords, with regard to what the noble and learned Lord, Lord Wilson of Langside, said, first, I would point out that it was not a discourtesy which led me not to send him a copy of the report but the simple fact that for legal reasons it was absolutely impossible for me to supply a copy of the report to any person until shortly before the Statement was made this afternoon. It was for that reason, and no other, that he did not receive a copy of the report.

As for the comments which he has made about Mr. Nimmo Smith, as he said, he made some of them in correspondence to me during the autumn of last year. I believe that the proof of the pudding is in the eating. If your Lordships wish to see whether Mr. Friel and Mr. Nimmo Smith were a team who were properly appointed to carry out an independent inquiry of clout, your Lordships will find the answer by reading the report.

As to the noble and learned Lord's other comments, particularly with regard to the incident of the bogus reporter, the noble Lord, Lord Macaulay, has said all that needs to be said on that matter. If the judgment of Mr. Nimmo Smith is to be examined, again I would say that one finds the answer to that when one looks at the nature of the report.

Lord Hailsham of Saint Marylebone

My Lords, is it not possible that this interesting and important Statement to which we have listened raises a question which is not confined to the law of Scotland? When matters of allegation of this kind are made, the inquiries set up should have the power to compel witnesses both to give evidence and to answer questions. If I am not mistaken, the inquiry which was set up—my point is not confined to Scotland in this respect—was not able to compel witnesses to give evidence or to ask them to answer questions under compulsion.

Lord Rodger of Earlsferry

My Lords, the point raised by my noble and learned friend is one which has been raised on other occasions. There is a general point of importance underlying it. When the inquiry was set up I was conscious of the very point which my noble and learned friend makes. It was for that reason that I indicated to those whom I had asked to conduct the inquiry that if they felt that their powers were not adequate and that they were not getting adequate co-operation they should come back to me. However, in the event, with the exception of two persons only, everyone agreed to be interviewed by the inquiry, and the members of the inquiry were themselves satisfied that they had obtained by the methods which they had all the evidence which they required from it.

Lord Monkswell

My Lords, while it is impossible for us to comment on the report—no doubt the usual channels will look at the situation, some of us will read the report, and we may have a debate at a later stage —we have had the Statement. It is right that we should be able to make short comments and ask questions on the Statement. That is what I am trying to do.

The question was raised in the Statement about the independence and objectivity of the procurator fiscal's department. That was in connection with the views within the police force. If those views are held within the police force, we can presume that those views are also held by a significant number of members of the public who will see the police force as an authoritative body. I am not sure that it will be enough just to advise the police force of the independence of the procurator fiscal's office on the basis of this report. Will the Government take on board the idea of a more substantive look at the problem that appears to have manifested itself with a view to reassuring members of the community in Scotland and also in England about the independence of the procurator fiscal's office.

Lord Rodger of Earlsferry

My Lords, it would be fair to say that the report indicates that among a certain number of officers in a particular police force in Scotland there was a less than satisfactory understanding of the position between the prosecution and the police force. I have no reason to think that that misunderstanding of the situation is widespread among other forces or among the populace in Scotland. But it is exactly to discover what is the best way forward that I intend to pursue the matter with the chief constable. I would simply add that to a good extent the relationship between the procurator fiscal service and the police is indeed governed by statute, in particular by the Police (Scotland) Act 1967. So Parliament has indeed put that on the statute book.